RPJ Employment Partner Larry Brocchini Discusses Second Circuit En Banc Ruling that Title VII Covers Claims for Sexual Orientation Discrimination

In an important employment discrimination case, the en banc Second Circuit held that “sexual orientation discrimination constitutes a form of discrimination ‘because of…sex,’ in violation of Title VII.”  This decision overturns prior Second Circuit precedent and now allows claimants to assert sexual discrimination claims based on sexual orientation under federal law.

Title VII of the Civil Rights Act of 1964 (“Title VII”), provides, in relevant part that “[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge . . . or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .”  42 U.S.C. § 2000e‐2(a)(1).  Consistent with the consensus among its sister circuits and the position of the United States Equal Employment Opportunity Commission (“EEOC”), the Second Circuit previously held that sexual discrimination based on sexual orientation was not prohibited under Title VII.

In Zarda v. Altitude Express, Inc., the en banc Second Circuit has now overruled that prior position.  Zarda involved the claim of Donald Zarda against his former employer alleging, inter alia, sex discrimination in violation of Title VII.  In particular, Zarda claimed that he was fired after revealing his sexual orientation to a client.  The lower court granted summary judgment to the defendants on the ground that Zarda had failed to show that he had been discriminated against on the basis of his sex.  After the EEOC decided Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), holding that sex discrimination includes sexual orientation discrimination, Zarda asked the district court to reinstate his Title VII claim. The district court, citing the Second Circuit’s decision in Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000), declined to do so.  Zarda appealed and a panel of the Second Circuit affirmed.  The Second Circuit then convened rehearing en banc and has now held that Title VII prohibits discrimination on the basis of sexual orientation.

The Zarda decision now allows victims of gender discrimination based on sexual orientation within the Second Circuit to pursue discrimination claims before the EEOC and thereafter in federal court.

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. If you need assistance with a particular employment or employment discrimination issue, Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.